In tema di giurisdizione fallimentare europea: trasferimento della sede legale all’estero e “Centro degli interessi principali” della società nel pensiero della S.C., alla vigilia della modifica del Reg. 1346/2000

The Author draws attention to some recurring questions faced by the Italian S.C. on the identification of the proper jurisdiction when dealing with European insolvency proceedings. Particularly, this case aims to clarify whether Italian Courts have jurisdiction to open a main insolvency proceeding when the registered office has been moved in another EU Member State, more than one year prior to the insolvency petition. On the one hand, art. 3, c.2, EU Reg. 1346/2000 establishes a rebuttable presumption, according to which a main insolvency proceeding can be opened in the State where the company has its registered office, given the fact that in this place the COMI is assumed to be. On the other hand, art. 10 Italian l.fall. states that a debtor cannot be declared bankrupt if he/she has be cancelled from the registered office more than one year prior to the insolvency petition, based on the assumption that the company does not exist anymore. In this case, the Italian S.C. states that art. 10 Italian L. Fall. cannot be applied when a company has simply been registered in another EU Member State. Furthermore, according to Art. 3 EU Reg., the Court stresses that the entitled jurisdiction to open this insolvency procedure is not necessarily the one where the registration office is located, because the COMI can be found based on a series of criteria are both objective and ascertainable by third parties. In doing so, the Italian Supreme Court aims to address a wide-spread phenomenon, known as “bad forum shopping”. Regardless the rightness of the legal decision and reasoning, this case show that the exact meaning and the concrete application of COMI are still unclear. Doubts remain on the precise conditions necessary to rebut the presumption enshrined in the EU provisions and on the lack of mechanisms aims at preventing fraudulent moving of companies’ registered office. It should be noted that a similar gap is not even addressed by the revision of the Regulation currently presented by the European Commission.